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1986 DIGILAW 119 (DEL)

CHAMAN LAL BAKLHI v. INDIAN OIL CORPORATION

1986-03-04

B.N.KIRPAL

body1986
B. N. Kirpal, J. ( 1 ) THE challenge in this writ petition is to the imposition of a penalty on the petitioner by the respondent-corporation. The penalty which has been imposed by the impugned order is that of with holding of three increments with cumulative effect. ( 2 ) THE petitioner was employed as Senior Depot Superintendent with the respondent-corporation. The respondent-corporation is a company registered under the Companies Act but all the shares are held by the Government. It is not disputed by the learned counsel for the respondent that it is a State within the meaning of that expression in Article 12 of the Constitution of India. ( 3 ) IT appears that while the petitioner was working at Ambala there was a written complaint which was filed against him. The allegation against the petitioner was that he had committed theft, fraud and dishonesty as a result of which there had been a financial loss to the respondent-corporation in respect of 6000 litres of high speed diesel oil. The allegation was that this oil had been supplied without the receipt of the sale price. ( 4 ) A charge-sheet dated 24/28th October, 1969 was given to the petitioner in which it was alleged that be bad committed an act of misconduct, namely, that of theft, fraud or dishonesty in connection with the Company s business or property. ( 5 ) THE petitioner, prior to the commencement of the enquiry proceedings, asked for the grant of copies of the complaint and the statements of the witnesses which had been recorded during a preliminary enquiry which had preceded the issue of the charge-sheet. According to the petitioner acither the copies of the complaint nor the said statements were made available to him. The petitioner also asked for some documents but according to the petitioner the same were also not made available to him. ( 6 ) AN Enquiry Committee was appointed which held an enquiry into the alleged misconduct. The grievance of the petitioner is that he had requested the Committee to summon 5 persons as defence witnesses but they were not summoned. It was also the case of the petitioner that the copies of the proceedings of the departmental enquiry were not given to him from day to day but instead the copies of the various statements etc. The grievance of the petitioner is that he had requested the Committee to summon 5 persons as defence witnesses but they were not summoned. It was also the case of the petitioner that the copies of the proceedings of the departmental enquiry were not given to him from day to day but instead the copies of the various statements etc. which were recorded during the enquiry were handed over to the petitioner on conclusion of the enquiry. The allegation is that the petitioner was thereby deprived of an opportunity of closely scrutinising the day to day proceedings and this in turn deprived him of an opportunity of conducting effective cross-examination of various witnesses. There are also allegations of other irregularities which are alleged to have been committed, but for the view which I am taking it is not necessary to refer to the same. ( 7 ) I might only notice at this stage that the Enquiry Committee found the charge against the petitioner as having been proved. After opportunity had been granted to the petitioner, a penalty of withholding 3 increments with cumulative effect was imposed on the petitioner. The petitioner filed an appeal but the Appellate Authority also dismissed the same. Aggrieved by this, the present writ petition has been filed. ( 8 ) THE main contention of the petitioner before me is that there has been serious violation of the principles of natural justice and the petitioner s fundamental rights under Articles 14 and 16 have been violated. ( 9 ) MY attention has been drawn to the decision of the Supreme Court in the case of M/s. Kshoram Cotton Mills Ltd. v. Gangadhar and otheri, AIR 1964 S. C. 708. In that case also previously prepared signed statements of witnesses were read out to the workman and he was asked to crossexamine the witnesses there and then. The Supreme Court held that this was not affording an effective opportunity of cross-examination to the work man concerned and there was, thus, violation of the principles of natural justice. Mr. Shroff, the learned counsel for the respondent, also fairly states that this is a lacuna which is present in the instant case. The Supreme Court held that this was not affording an effective opportunity of cross-examination to the work man concerned and there was, thus, violation of the principles of natural justice. Mr. Shroff, the learned counsel for the respondent, also fairly states that this is a lacuna which is present in the instant case. There can be no doubt that in order to have an effective opportunity of cross examining the witnesses the proceedings whereby the said statements of the witnesses were recorded had to be supplied to the workman concerned so as to enable him to study the same and then cross-examine the witnesses. There being this serious infirmity, it is obvious that the punishment which has been imposed on the petitioner will have to be quashed. ( 10 ) MR. Shroff, however, has raised a very interesting and a fundamental point. It is his contention that even though the respondent may be a State within the meaning of Article 12 of ihe Constitution, nevertheless in a case like the present, which involves the enforcement of a private law as opposed to a public law, proceedings cannot be initiated under Article 226 of the Constitution. The learned counsel submits that the relationship between the parties is purely contractual and if this relationship is brought to an end or there is any violation or breach of any contractual obligation, then the proper remedy is to go by way of a suit and not to approach a Court under Article 226. ( 11 ) IT is true that originally the view which was taken was that a writ Court will not exercise its jurisdiction in relation to enforcement of contractual obligations. Without expressly over-ruling this proposition, the latest observation of the Supreme Court, however, appears to be that in the case of employment by Government corporations where there appears to be a violation of Article 14 of the Constitution it has been held that a petition under Article 226 is maintainable. This is obvious from the observations of the Supreme Court in the cases of Managing Director, Uttar Pradesh Warehousing Corporation Y. Vinay Narayan Vajpayee, AIR 1980 S. C. 840 and A. L. Kalra v. The project and Equipment Corporation of India Ltd. , AIR 1984 S. C. 1361. However attractive the arguments of Mr. This is obvious from the observations of the Supreme Court in the cases of Managing Director, Uttar Pradesh Warehousing Corporation Y. Vinay Narayan Vajpayee, AIR 1980 S. C. 840 and A. L. Kalra v. The project and Equipment Corporation of India Ltd. , AIR 1984 S. C. 1361. However attractive the arguments of Mr. Shroff may appear to be, I am bound by the observations of the Supreme Court and, therefore, as far as this Court is concerned it is not open to the learned counsel to contend that this Court should not entertain a petition under Article 226 where the question involved is about the disciplinary action which has been taken against an employee of a Government corporation. ( 12 ) MR. Shroff then contended that the effect of approaching the Court under Article 226 is that an effective opportunity to the respondents to defend its action if lost. Furthermore, the learned counsel contends that if there has been a breach of the principles of natural justice that should not entitle the petitioner to be let off scot free and an opportunity should be granted to the respondents, to cure the defect and to hold afresh enquiry. The learned counsel in this behalf has drawn an analogy to the position which exists under Section II-A of the Industrial Disputes Act. If in such a case the Labour Court comes to a conclusion that there is a denial of the principles of natural justice in a domestic enquiry then it is open to the Management to prove the misconduct de novo before the Labour Court. The learned counsel submits that if a suit had been filed there again the respondent would have had an opportunity of proving its case. ( 13 ) WHEN the State acts in violation of Article 14 of the Constitution then the said action has to be quashed. The question, however, is which is the forum to do so. Is the remedy of an aggrieved party only by way of a suit or is it open to him to come by way of a writ petition under Article 226 of the Constitution. The position of law as it now stands appears to be this that it is open to an employee of a Government Corporation whose rights under Articles 14 and 16 are violated, to approach the Court under Article 226 of the Constitution. The position of law as it now stands appears to be this that it is open to an employee of a Government Corporation whose rights under Articles 14 and 16 are violated, to approach the Court under Article 226 of the Constitution. It is also well settled that the remedy under Article 226 is a discretionary remedy. Unlike an appellate forum a writ court under Article 226 of the Constitution has a discretion not to interfere in appropriate cases. In my opinion when it is shown to the Court that effective defence is shut off or the respondents are prejudiced by not being able to lead evidence then in inch a case the proper remedy for an aggrieved party would be by way of a civil suit and not a petition under Article 226, This is a rule of discretion and not an absolute, rule. The court would be exercising its discretion properly if it refuses to interfere under Article 226 when it comes to the conclusion that such interference is likely to prejudice any one of the two partics before it. If the respondent is able to show that without leading oral evidence it is not possible for it to defend its action then the Court should ordinarily not proceed under Article 226 of the Constitution. Where, however, on the other hand, the illegality of the act is apparent on the face of the record then the Court would be justified in exercising its discretion under Article 226 of the Constitution. ( 14 ) IN the present case it is evident that proper opportunity had not been granted to the petitioner to cross-examine the witnesses. On this ground alone the enquiry proceedings should be quashed. As I do not propose to go into the merits of the charge against the petitioner as disputed questions of fact arc involved, the proper course to be adopted would be to give the espondents another opportunity of holding a de novo enquiry. ( 15 ) FOR the view which I am taking it is not necessary for me to go into and adjudicate upon the other objections which have been raised in this petition by Mr. Gupta. ( 16 ) I accordingly allow the writ petition and quash the punishment which has been imposed on the petitioner. The respondents shall be at liberty to hold a de novo enquiry. Gupta. ( 16 ) I accordingly allow the writ petition and quash the punishment which has been imposed on the petitioner. The respondents shall be at liberty to hold a de novo enquiry. Any such enquiry which is held should be completed within 6 months from today. Parties are left to bear their own costs.